Dr. Klaus Oblin, LL.M.
Attorney-at-law under Austrian law. Supervising authority: Vienna Bar Association.
Seat: Josefstädter Straße 11, 1080 Wien
Legal studies at the University of Vienna (Mag.iur., Dr.iur. "with high honours") and postgraduate legal studies at the University of San Diego (LL.M. Comparative Law)
Independent since 2004
Freshfields Bruckhaus Deringer, Vienna
McDougal Love Eckis Smith&Boehmer, San Diego
Cerha Hempel Spiegelfeld Hlawati, Vienna
German (native), English (fluent), French (basic)
International Chamber of Commerce ICC (Austria)
International Centre for Dispute Resolution ("ICDR")
Austrian Arbitration Association ("ArbAut")
German Institution of Arbitration ("DIS")
International Bar Association ("IBA")
Regular contributions to the litigation-newsletter at the "International Law Office"
Austrian chapter to "The Willis Worldwide Directory of Directors and Officers Liability" (Willis, 2005)
Lectures on International Supply Contracts (ICC Austria)
There have been a number of recent legislative developments in Austria, including amendments to the Austrian Enforcement Act, which have granted certain parties access to data about pending enforcement proceedings. Further, the Supreme Court has confirmed that the res judicata effect of a foreign judgment applies at all stages of proceedings conducted in Austria.
The Supreme Court recently ruled that even settled case law can change. The law prevents the retroactive application only of statutory laws, not court decisions. Therefore, changes in case law also apply retroactively, as there is no ban on the retroactive application of legal knowledge by the courts. The interest in maintaining 'correct' case law overrides earlier protections afforded to those applying the law; thus, it is paramount to be prepared for changes in case law.
Article 23(1) of the EU Brussels I Regulation sets out minimum requirements for contractual agreements. In particular, the requirements seek to ensure that agreements conferring jurisdiction do not become part of the contract without the knowledge of all of the parties. In a recent case involving the international chemicals industry, the Supreme Court had to consider whether the formal requirements in Article 23(1) had been met.
The Supreme Court recently ruled in a case in which a loan was granted without collateral and obviously served to finance the acquisition of the target's shares. Considering that this withdrew considerable funds from the company, putting creditors at risk without any operational justification, the Supreme Court held that this could not be reconciled with the diligence expected from a reasonable manager.
Under Article XLII of the Code of Civil Procedure, any party that has a substantive claim for information against another party (which it is suing for performance) has a claim for the disclosure of accounts to mitigate serious problems with quantifying the substantive claim if the accounts could help the claimant and if the respondent can be reasonably expected to provide them.
The Supreme Court recently held that jurisdiction for tort cases under Article 7(2) of the Brussels I Regulation must be interpreted only under the regulation. According to the regulation, torts are illegal acts that ultimately require the defendant to pay damages and are not connected to a contract within the meaning of Article 7(1) of the regulation. According to the court, this jurisdiction includes both the place of the original act and the place where the loss occurred or is about to occur.
The Supreme Court recently ruled on whether and under which circumstances a service of process is valid in a location different from that originally listed. The court ultimately held that a request for service of process can be lawfully interpreted only according to the respective state law. If that law states that the service of process can also take place in a different location, there is no reason to view this as unlawful.
The Supreme Court recently ruled on the liability of arbitrators to pay damages. The court ultimately upheld the terms of the arbitrators' contract, finding that civil claims for damages can be pursued, among other things, only after the arbitration award has been annulled. This case demonstrates that arbitrators' contracts should be interpreted in a way that ties the arbitrators' liability for damages to the annulment of the arbitration award.
The Supreme Court recently dealt with the limits of preclusion or res judicata. According to the subjective limits of preclusion, the effects of res judicata encompass the litigants, their legal successors and certain other persons to which the legal effects of the respective court's decision are extended in accordance with the law. Therefore, res judicata takes effect − apart from cases of extended and absolute legal force – only between the same parties.
The Supreme Court recently ruled that if the judgment for which a declaration of enforceability is sought is not final, the court deciding on a second or third appeal may order the party seeking the declaration to pay security in accordance with the Brussels I Regulation. This is intended to prevent unjustified losses to the debtor if the court order is later rescinded or amended and the claims for damages or unjust enrichment cannot be enforced.
The Supreme Court recently ruled that, for transactions between Single Euro Payments Area countries, the enforcement of an obligation to pay a monetary claim in a foreign currency must be executed in accordance with the rules on the enforcement of monetary claims. The court thus ordered the debtor to post a US dollar amount with a Slovakian court based on a Slovakian court order.
The Supreme Court has ruled in a case in which the plaintiff argued for international jurisdiction based on the rules for disputes regarding individual employment contracts, as outlined in the Lugano Convention 2007. While the convention's 'in writing' requirement can be met by referencing terms and conditions which include a prorogation clause, standing case law requires a contract's text to refer explicitly to the terms and conditions.
In a recent decision the Supreme Court considered matters of judicial conflict arising in connection with the Convention on the Contract for the International Carriage of Goods by Road (CMR). The court ruled that the CMR enjoys priority over the Rome I Regulation, insofar as it addresses an issue itself or provides a conflict rule.
The objection of a violation of the public order can be used only if the foreign title is based on a legal argument that is completely incompatible with the domestic legal order. However, not all deviations from Austrian procedural law will make enforcement of a foreign title incompatible with the legal order.
The European Court of Justice recently ruled on where harm first arises with regard to product liability claims. It held that in cases where a producer is being sued based on liability for a faulty product, the location of the harmful event is where the product in question was produced.
The Supreme Court recently ruled that, in accordance with the Brussels I Regulation, the courts of the member state where immovable property is situated have exclusive jurisdiction for cases dealing with rights in rem for the lease or tenancy of immovable objects. This international exclusive jurisdiction issue supersedes the general jurisdiction of the courts in the domicile state of the defendant.
The High Court recently ruled that in decisions with international jurisdiction, the term 'services' must be interpreted through the use of EU law as a whole. Further, such interpretation must encompass all contracts that cover the achievement of a certain factual result in exchange for payment, as opposed to the mere performance of an activity, as in an employment contract.
The High Court recently ruled that Article 34(2) of the Brussels I Regulation, which prevents a judgment from being recognised if the defendant was not granted sufficient opportunity to defend himself or herself against the claim, is applicable only if the document initiating the proceedings was served on the defendant in a way such that he or she could raise a defence against the lawsuit.
An Italian court recently granted a payment order against a company registered in Austria to an Italian plaintiff, in which the Austrian company was ordered to pay around €2.7 million. However, the Austrian High Court has ruled that as the Austrian defendant was not granted due process and had no opportunity to voice its objections against the claim, the payment order cannot be enforced in Austria.
The Supreme Court recently updated existing case law, stating that an action for a preventive injunction regularly requires that the infringement of rights have already begun. The more valuable the potentially threatened right, the more likely it is that the potential tortfeasor must refrain from activities that would lead to the possibility of damage. However, the applicant must provide proof of a serious and imminent threat.
The Supreme Court recently dealt with the requirements for the suspension of enforcement proceedings under Austrian and European law. Under the Enforcement Act, enforcement can be postponed only if its beginning or continuation is related to the risk of an irreplaceable property loss, or one that would be difficult for the applicant to replace.
The Supreme Court has recently had to deal with questions regarding declaratory judgments. In a recent decision, the court issued an interim judgment on the (negated) statute of limitations. Such interim judgment does not exclude the claim being later rejected due to a lack of evidence. The court also examined the requirements of legal interest in a declaratory judgment, in connection with conditional rights.
The Supreme Court recently confirmed that the universal successor of a party to proceedings is regarded as 'the same party'. Where proceedings involving the same cause of action and between the same parties are brought before the courts of different member states, any court other than the court first seized shall, of its own motion, stay its proceedings until such time as the jurisdiction of the court first seized is established.
The Supreme Court recently handed down two decisions dealing with the timeliness of submissions made by fax or email. The court ruled that the sender of a brief will always bear the risk if a fax or email does not arrive, even if the reason for late receipt lies with the court. Emergency submissions (eg, where a fax does not go through) should be filed by email in the assumption that there will be no server problems.
Under the Civil Code, in order for a restitution claim due to failure of consideration to arise, the service recipient must be aware that the service was performed in expectation of later receipt of consideration. 'Consideration' includes the usual remuneration, as well as other ordinary and extraordinary benefits (eg, commission) which are based on the result of the work provided.